Consensual guardianship is a legal arrangement in which the individual transferring guardianship is mentally competent and wants to choose the guardian. The guardian is the party taking legal responsibility, while the ward is the person under guardianship. A typical example of this is when a parent allows another person, such as a sibling or grandparent, to become the guardian of a child they can no longer raise, usually due to extenuating long-term circumstances.
In this article, a Fort Smith guardianship lawyer discusses how consensual guardianships are different from other forms of guardianships, the responsibilities of a guardian, who can be appointed as a guardian, and how to terminate guardianship rights in the future.
How Are Consensual Guardianships Different?
Legal guardianships come in several forms. For example, the opposite of consensual guardianship is involuntary guardianship. Involuntary guardianships happen when incapacitation or legal issues arise and the ward can no longer take care of their affairs.
Here are the essential elements of what makes consensual guardianships unique:
They are Voluntary
Parents typically initiate consensual guardianships as entirely voluntary actions. The parent may believe guardianship is in their child’s best interests or recognize their inability to care for them. Rather than wait for court intervention, the parent takes the initiative under consensual guardianship.
All Current Guardians Must Consent
The petitioner must obtain consent from both legal parents or guardians to initiate proceedings. If one parent does not have the consent of the other parent, they may be unable to appoint a guardian consensually. You may want to hire a guardianship attorney if you are struggling to gain the other parent’s permission in good faith.
They Aren’t Temporary
Some parents need a temporary fix to a temporary problem. If the parent is aware that they are currently unable to care for their child but is taking steps to provide for the child in the future, a temporary guardianship may be a better solution. Your attorney can help you weigh out your legal options so that you can decide the best path for you and your child based on the facts of your situation.
What Are the Responsibilities of a Guardian?
Consensual guardianships confer legal rights and responsibilities onto the guardian. At the time of the decision, the current guardian or ward must understand what legal rights they are voluntarily foregoing. Both parties take on and give up a considerable amount of their resources to fulfill this arrangement from a legal standpoint.
Upon receiving formal guardianship rights, the guardian can make educational, financial, legal, medical, and residential decisions on the ward’s behalf. Essentially, the guardian takes on full legal responsibility for the ward and must provide for their needs.
If you are accepting guardianship or thinking about transferring it, make sure that you choose a person who is well-suited to take on the role. Otherwise, the guardian or ward could face more complications and issues than there were originally.
Who Can Be Appointed as a Guardian?
Transferring or obtaining guardianship is not an easy decision. There are a few legal requirements to fulfill before becoming the guardian of a consensual guardianship. However, these requirements are generally straightforward under this arrangement since the decision-making parties want to transfer their legal rights to someone else voluntarily.
In Arkansas or Oklahoma, you can become a guardian under consensual guardianship if you are:
- Age 18 or older
- Of sound mind
- Not a convicted and un-pardoned felon
These are the basic, general legal requirements to become a guardian. Depending on the prospective guardian’s legal background and status, there could be a few other requirements to meet. You should speak with an attorney to determine if additional rules apply to your specific situation.
How to Terminate a Consensual Guardianship
There are many cases where the parent wants to resume guardianship after resolving preceding circumstances or when the ward no longer finds it necessary. Both Arkansas and Oklahoma statutes address terminating a consensual guardianship. Here is an outline of how each of these states decides whether to allow the termination of a consensual guardianship:
- Arkansas: Under Ark. Code 28-65-401, termination is allowable if the guardianship is no longer necessary or in the ward’s best interest.
- Oklahoma: Under 30 OK Stat. 30-4-804, termination is allowable if the judge determines that guardianship is no longer in the ward’s best interest.
Under the same statutes, judges have the authority to deny the request and allow guardianship to continue.
Hire a Consensual Guardianship Lawyer for Legal Advice
Uncertainties surrounding consensual guardianship can lead to legal mistakes. Determine if this option is best for you and your family by speaking with a guardianship attorney serving Arkansas or Oklahoma about your options and potential outcomes. We can assist you in making the best decision possible for your child, yourself, and all other parties involved.
If you or a loved one needs legal help, Milligan Law Offices will provide compassionate, empathetic legal support through this challenging time. Our team can discuss whether a consensual guardianship is suitable for your situation or if better options are available. You can count on us to stand by your side during proceedings, regardless of how hard things get.
Call Milligan Law Offices Today
You deserve answers to critical legal questions. The team at Milligan Law Offices offers prospective clients a chance to learn more about their legal options. If you’d like to learn more, call us today at (479) 783-2213 or send us a message online for an initial consultation.
Milligan Law Offices